Trans Mountain expansion faces potential road block

Photo courtesy of: TransCanada Corp.

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By Peter Kennedy

The expansion of the Trans Mountain pipeline faces another potential road block after the Federal Court of Appeal agreed Wednesday September 4 to hear appeals from activists who are opposed to the Federal Government’s recent decision to approve the controversial project.

The court has agreed to hear six of 12 possible appeals to the Trudeau government’s decision. Their court challenges are limited to the narrow issue of the adequacy of the Government of Canada’s further consultation with Indigenous people and First Nations between August 30, 2018 and June 18, 2019, the date that Ottawa approved the project for a second time.

“The court has ordered that the challenges proceed on an expedited basis. Short and strict deadlines for the steps in the litigation will be set,” the court said in a news release, Wednesday.

The court said that Indigenous groups raised serious concerns about the federal Liberal government’s redo of the consultation process.

“In their evidence, consisting of many thousands of detailed pages, the Indigenous and First Nations applicants point with considerable particularity and detail to issues they say were important to them. They say the Government of Canada ignored these issues in the original process of consultation and ignored them again in the further consultation process. They add that little or nothing was done in the process of further consultation,” wrote Justice David Stratas in a reasons for order document, dated Sept. 4, 2019.

“In their view, the time left for the further consultation process, roughly four months, was insufficient to address the shortcomings identified by this Court in Tsleil-Waututh Nation. Even during these months, some of the applicants allege inactivity by the Government of Canada.”

The Canadian government became an owner of the Trans Mountain pipeline in May, 2018 following a $4.5 billion purchase agreement with former owner Kinder Morgan Canada [KML-TSX], means the project will in all likelihood be approved this week, sources told Reuters.

Shareholders of Kinder Morgan Canada voted overwhelmingly to approve the sale on the same day that the Federal Court of Appeal quashed the approval of the $7.4 billion Trans Mountain Pipeline expansion on the basis that Canada’s efforts to meaningfully consult with indigenous people fell short.

When the ruling was announced, the court also criticized the lack of attention given to how increased tanker traffic off the coast of British Columbia would affect the resident killer whale population.

However, in February, 2019, the National Energy Board recommended that Ottawa reapprove the controversial project, which the Trudeau government agreed to do on June 18, 2019.

Trans Mountain recently issued “Notice to Proceed” directives to some of its prime construction contractors, triggering mobilization of the initial workforce needed to restart construction on the pipeline project. It said work will resume at Kinder Morgan’s Burnaby, B.C., terminal as well as in communities in Alberta. Trans Mountain expects to have close to 4,200 workers on the job in various communities by the end of 2019.

The original Trans Mountain Pipeline was built in 1953 and continues to operate today. The proposed expansion is essentially a twinning of the existing 1,150-kilometre pipeline between Edmonton, Alberta and Burnaby, British Columbia.

Expected to cost approximately $7.4 billion, it will create a pipeline system with a nominal capacity rising from 300,000 barrels per day to 890,000 barrels per day.

After purchasing the pipeline from Kinder Morgan, the Canadian government elected not to challenge a court decision that put the brakes on the expansion.

Instead, Ottawa said it would resume consultations with Indigenous groups that will be affected by the project.

Canadian Natural Resources Minister Amarjeet Sohi said, at the time, Ottawa was going to work with First Nations and Metis communities to seek their views on how to get Phase 111 [of the process] right.

Prime Minister Justin Trudeau is facing huge pressure from Alberta and its Premier Jason Kenney to get the Trans Mountain pipeline approved and built, so that Alberta’s resource sector can move more of its oil offshore to markets in Asia.

Alberta-based senator Doug Black introduced Bill S-245 the Trans Mountain Pipeline Project Act in the Senate last year. His aim was to declare that the pipeline expansion project is in the national interest and should proceed for that reason.

Not having access to energy markets is costing Canada billions of dollars and the expansion of the Trans Mountain pipeline system between Edmonton and Burnaby is a critical solution to this problem, Black said.

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